~ A Journal of Democracy and Public Affairs

War, politics, and law

As Robert Mueller pushes his investigation to new matters irrelevant to the 2016 campaign, I see the phrase rule of law appear. That tells you Rosenstein and company feel a little defensive. More than that, the suggestion rule of law applies to presidential elections seems rather misplaced. We all recognize that politics and law intersect, overlap, perhaps even slosh around together, like the contents of our sewage pipes when we flush the toilet. It’s all unseen and you don’t have to think about it. But then someone says ‘We have to remember the rule of law here.’ Then you think about it.

The campaign we witnessed and endured in 2016 returned us to the early days of our republic. You felt you were back in 1800, the first true presidential election campaign in our country’s history. One difference between 1800 and 2016 is that in 1800, politicians did not pretend that law ruled their actions. A second difference is that the security state did not exist. A third difference is that our democracy and democratic institutions were young, not sclerotic.

The campaign we witnessed and endured in 2016 returned us to the early days of our republic.

You can see these differences in the Trump vs. Mueller combat a mort. Justice Department harbors the FBI, a key domestic component of the security state. Justice Department also administers the nation’s legal system. Security agencies want to know whether a foreign power interfered in our nation’s presidential election, and if so, how. When the Justice Department does anything, especially related to the president, operators and spectators in Washington flap their gums about rule of law. These are people who, on a normal day at work, never think about the subject.

When you want to bring down a president, though, rule of law is a useful thing to have on your side. People do not argue with you, when you thump the table and point to a barn full of legal precedents to backstop everything you do. What good are those law books, if not to help you practice politics as you like? Call the president a strongman, but at least he does not pretend rule of law matters to him. He hires lawyers because he fights people who use legal weapons in a political battle.

Call the president a strongman, but at least he does not pretend rule of law matters to him.

If Rod Rosenstein says he wants to defend rule of law, less power to him. When the deputy attorney general slings his legal findings and comebacks about extortion at the president, what doesn’t stick at the White House gates may stick to the president’s advisors. You cannot tell outcomes for these battles in advance. You can only watch, and cheer for your team. But for God’s sake, as we watch these two teams engage each other in Washington’s favorite game, we should not pretend that rule books can or ought to guide us, or that here, of all places, we ought to protect their sanctity. Rule books specify bacteria levels at a sewage treatment plant. Political warfare does not operate according to rules.